Case on Claim of Negligence
Added on 2020-02-24
11 Pages2433 Words55 Views
TORT LAW2ContentsPart A...............................................................................................................................................3Issue.............................................................................................................................................3Rule..............................................................................................................................................3Application..................................................................................................................................6Conclusion...................................................................................................................................7Part B...............................................................................................................................................8Issue.............................................................................................................................................8Rule..............................................................................................................................................8Application..................................................................................................................................8Conclusion...................................................................................................................................9Bibliography..................................................................................................................................10A.Articles/ Books/ Reports.....................................................................................................10B.Cases...................................................................................................................................10C.Legislations.........................................................................................................................11
TORT LAW3Part AIssue The key issue in this case revolves around the possibility of a claim of negligence being made against Dr Stark, on the basis of Civil Liability Act 2002, by the Nguyens. Rule Negligence is amongst the different torts which are applicable in Australia. In a case of negligence, a breach of duty of care takes place, which leads to the second part being harmed or having to face a loss or injured1. For establishing the presence of negligence in a particular case, there is a need to show the presence of certain elements which include the duty of care, its breach, resulting damages, foreseeability of loss, proximity between parties, direct causation and the losses not being too remote2. This requirement is given under the common law. The similar provisions are covered under the Civil Liability Act, 20023. Section 5B of the Civil Liability Act 2002 provides that a person would be held liable for negligence only when they fail to take the requisite precautions against the possible risk of harm, where such a risk of harm was reasonablyforeseeable and was not significant, and that in similar circumstances, a prudent person would have undertaken these precautions4. In order to show that a party had been negligent, the first requirement is to show that a duty of care was owed by one party to another. Donoghue v Stevenson5 was a case where the 1 Keith Abbott, Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)2 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)3 Civil Liability Act, 2002 (NSW)4 Civil Liability Act 2002, s5B5 [1932] AC 562
TORT LAW4court held that the manufacturer owes a duty towards the consumers, as the product which they produce, is consumed by consumer. And so, it is crucial that the manufacturer prepares drinks which are safe for the consumer. The deal snail found inside the ginger beer bottle was a breach of duty of care. In considering the duty of care in this case, the court analysed the proximity between the parties, where the actions of one party had the possibility of harming another6.Section 5B of the Civil Liability Act 2002 provides that a duty of care would be breachedwhen the probability of the occurrence of such harm was not undertaken properly, along with theseriousness of harm. Further, there was also a failure in considering the burden of taking the requisite precautions for avoiding the harm and the social utility of the undertaken activity7. The second step is to show that the duty of care which had been owed by the defendant was contravened. And the third step is to show that this caused a serious harm to the plaintiff8. Paris v Stepney Borough Council9was a case where the court held that the defendant had to provide the safety gear to the plaintiff, which they failed to do. This was a breach of duty of care on part of the defendant. Further, as the plaintiff loss his only good eye, ultimately making him blind, the court had that the injury was substantial and this led to the court ordering the defendantto compensate the plaintiff for their injury. The injury has to be a direct result of the breach of duty of care, which was clearly established here. This clarifies that if the damages are too remote, the plaintiff would not be compensated, as was seen in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd10.6 Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)7 Civil Liability Act 2002, s5B8 Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)9 [1951] AC 36710[1961] UKPC 2
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